Shen Jiamu Biography

Author: Li Guilian
Publisher:
Publishing Date: 2000-04-01
Features: Professor Li Guilian has recently completed his book Biography of Shen Jiaben, and suddenly asked me to write a preface, which surprised me. In terms of seniority, he is a generation older than me; in terms of scholarship, he is even more profound, with a series of outstanding works, making him one of the most rigorous and accomplished scholars in the field of legal history in China today. Although I have read Collected Writings of Ji Yi, I must admit that when it comes to Professor Li's expertise in Chinese legal history, I do not even qualify to offer a word. I couldn't help but recall the ancient saying, "misfortune and fortune alternate": it is indeed a great honor to write the preface for such a learned colleague and neighbor, but if I fail to grasp the measure and write something off-topic, it would only bring ridicule from the knowledgeable and disrespect both to the author and the readers. Since I cannot refuse, the best approach would be to share some preliminary reflections after reading the preliminary draft of this book—as well as the author's other works on Shen Jiaben previously—as a form of communication with the readers. I know that Professor Li developed a strong academic interest in Shen Jiaben in the late 1970s while studying as a graduate student at Peking University, and his graduation thesis was about Shen Jiaben. Later, in this field, he published influential works such as Chronological Biography of Shen Jiaben and Shen Jiaben and the Modernization of Chinese Law, as well as numerous important papers. It is largely due to Professor Li's long-term, diligent, and outstanding efforts that Shen Jiaben, once a "dusty relic" little mentioned in the past three decades, has become a focal point of academic attention both domestically and internationally. However, to say that the immense efforts of scholars in Chinese legal circles over the past two decades—Professor Li being one of the most important and influential among them—have been disproportionate would be an understatement. A historical figure can capture the interest of later generations and attract so much attention and effort to study and interpret him, partly because of his historical significance, but also because his ideas and achievements are closely tied to the circumstances and challenges faced by those who are interested in him. Shen Jiaben lived during the late Qing Dynasty, an era of the introduction of Western law to China. Through works such as Examination of Criminal Laws Throughout the Dynasties and Collected Writings of Ji Yi, we know that Shen Jiaben had profound expertise in classical history and literature, while his long career in the legal department had equipped him with extensive knowledge of law and case-handling skills. In the second half of the 19th century, alongside the (strong ships and powerful guns) of Western powers, Western legal systems and knowledge also began to (penetrate) into our culturally ancient nation. At that time, there were frequent incidents of foreign missions and constant conflicts, and Shen Jiaben himself had personally handled such cases. It is clear that this was an era of conflict and integration between two systems of knowledge and two legal cultures. Shen Jiaben, caught in this unprecedented crisis and transformation of five thousand years, could not but use his knowledge and wisdom to address the problems posed by the times. We see that although his past knowledge was mostly rooted in traditional law and he was already over sixty when appointed as the Minister of Legal Revision, Shen Jiaben's open attitude toward Western law was no less than that of his peers. With Western law as a reference, his traditional legal knowledge gained an extraordinary value: the interplay between the two systems made his legal reform proposals both comprehensive and targeted. An open cultural stance is not one-dimensional; what makes Shen Jiaben admirable is that he was not a simple Westernizer. While praising Western law and recognizing that many flaws in the Chinese system could be remedied by learning from the West, he placed greater hope in the integration of the two great cultural traditions. In the preface to a book examining foreign judicial systems, he clearly expressed this "harmonizing of East and West" stance: "Those who now advocate for Western law may not fully understand its essence, for it is merely used as a means to impress the world. They follow it blindly, step by step. Those who rigidly adhere to tradition, on the other hand, despise the West, thinking that it has nothing to offer in any aspect. Yet, there are indeed similarities between Western law and ancient law. What is bad in our law should be abandoned; to fail to abandon it is to act against reason. What is good in their law should be adopted; to fail to adopt it is to act foolishly. One must thoroughly understand the reasons behind political, educational, and cultural customs, and at the same time grasp the principles of law. With an open mind and keen intellect, one should adapt and harmonize, so as to avoid acting against reason or foolishly. Why should we cling to notions of East or West?" Such a humble and wise, two-way open cultural stance, how could it ever seem outdated even today? In this book, the author presents Shen Jiaben's formation of his legal cultural views and his journey in striving for the modernization of Chinese law. We can see how this official-intellectual, living in a time of great upheaval, with a strong sense of national crisis, devoted himself tirelessly to the modernization of Chinese law. I myself have long been interested in the life and works of Wu Tingfang, who was appointed as the Minister of Legal Revision alongside Shen Jiaben. Wu was born in the South Seas and studied at a church school in Hong Kong in his youth, later traveling to England to graduate from the renowned Lincoln's Inn, becoming the first Chinese to obtain a complete British legal education and barrister qualification. In terms of his understanding of Western legal systems and Western knowledge, Wu Tingfang had greater advantages than Shen Jiaben in the late Qing legal reforms, which were centered on borrowing from the West, and thus should have played a more significant role. However, historical facts show that Wu's contributions to legal reform were far less than Shen's. The reasons for this are worth considering. In the late Qing Dynasty, there was frequent Sino-foreign interaction, but there was an extreme shortage of qualified diplomats, to the extent that the Qing court had to resort to recruiting foreigners as diplomats, even if they were not Chinese. For scholars like Wu Tingfang, who were deeply versed in Western studies and familiar with foreign affairs, their primary field of expertise was naturally foreign affairs, not domestic politics. Wu's knowledge background was primarily in Anglo-American law, which, from the perspective of legal transplantation, relies more heavily on case law and has more profound liberal and individualistic connotations than continental law, making it more difficult to overcome. Therefore, although Britain was the most powerful country at the time and its constitutional monarchy was highly attractive to the Qing court, if the goal was to quickly align Chinese law with international standards ("to reform the law in accordance with the practices of other nations") to expedite the abolition of extraterritoriality, it would be unrealistic to rely on the distant Anglo-American law. The most efficient approach would be to borrow from continental law, and even more efficiently, to copy from Japanese law. In this way, Wu Tingfang had little advantage. Moreover, for those engaged in reform in China, mere patriotic enthusiasm was not enough; experience and strategy cultivated through court life were also crucial for ensuring the smooth progress of reforms. Although Shen Jiaben's path to the imperial examinations was arduous, he ultimately passed the exams in middle age and had three decades of experience as a legal department official, witnessing the maneuvering, cunning, and intrigue in the court. While he could not tolerate them, the process of observing and resenting them also involved familiarity and adaptation. Perhaps an example can illustrate this. In the 33rd year of the Guangxu reign, there was a famous dispute between the Ministry of Justice and the Supreme Court of Justice, known as the "Ministry vs. Court of Justice" conflict, over issues of jurisdiction. At the time, the Minister of Justice Dai Hongci wrote to Liang Qichao, asking for support, complaining: "Shen Tang uses insidious means to seize legal authority; all matters of personnel, regional divisions, and judicial jurisdiction are in his hands, and the Ministry is left out of the loop." Liang Qichao also believed that "the injustice in this matter lies not with the Ministry of Justice but with the Supreme Court of Justice, and it would be appropriate to support the latter." (See Chronological Biography of Liang Qichao, pp. 379–381). Let us set aside the question of right and wrong here; the point is to emphasize that institutional reform and the success or failure of a life's work are not as simple as what is taught in ordinary textbooks. Shen Jiaben's deep understanding of the logic of the Chinese court, compared to Wu, who only began to engage with the Chinese court at the age of forty, is simply uncomparable. How can the scale of one's achievements be entirely tied to personal talent and effort? The greatest challenge in writing a biography of a historical figure may lie in accurately portraying the complexity of the subject and his environment. Through meticulous research, insightful analysis, and a delicate yet forceful writing style, Professor Li allows us to gain a comprehensive understanding of the subject's life and deeds. Not only in this book but also in his previous works on historical figures, the author shows a particular attention to using highly personal materials to describe and analyze the inner lives of his subjects. This is not just to create a sense of familiarity for the readers but also to correct the tendency in historical writing in recent decades to focus too much on patterns and too little on human psychology. It also helps achieve an important goal of historiography—to more authentically recreate the true face of history. In 1914, Yuan Shikai inscribed on Shen Jiaben's tomb: "The study of law is crucial for the nation, and his high reputation is passed down through his writings." This is a very fitting evaluation of Shen Jiaben. The "writings" that are meant to "pass down" naturally refer first to Shen Jiaben's own various writings, which Professor Li has been (enthusiastically) collecting and publishing. However, the research works of later generations on Shen Jiaben, such as specialized studies, chronicles, and biographies, should also be included. With excellent biographical works, "passing down" and "writing down" complement each other, making the biography no longer just an outer garment attached to the subject. It is a creation that shines with the wisdom of the author's historical thinking and concern for reality. In explaining a life, it also gains a life of its own.